Again, as to the opinion relative to the meritoriousness of certain processions. By the principal part of the provision, government stands precluded from prohibiting pub lications manifesting an opinion in favour of the obligatoriness or meritoriousness of such processions. By the spirit of the same engagement, they stand precluded from prohibiting the performance of such processions, unless a persuasion of a political inconvenience as resulting from such practice a persuasion not grounded on any notions of their unlawfulness in a religious view-should come to be entertained: as if, for example, the multitude of the persons joining in the procession, or the crowd of persons flocking to observe them, should fill up the streets to such a degree, or for such a length of time, and at intervals recurring with such frequency, as to be productive of such a degree of obstruction to the free use of the streets for the purposes of business, as in the eye of government should constitute a body of inconvenience worth encountering by a prohibitive law.
It would be a violation of the spirit of this part of the engagement, if the government, — not by reason of any view it entertained of the political inconveniences of these processions (for example, as above,) but for the purpose of giving an ascendency to religious opinions of an opposite nature (determined, for example, by a Protestant antipathy to Catholic processions) —were to make use of the real or pretended obstruction to the free use of the streets, as a pretence for prohibiting such processions.
These examples, while they serve to illustrate the ground and degree and limits of the liberty which it may seem proper, on the score of public tranquillity and peace, to leave to the manifestation of opinions of a religious nature, may serve, at the same time, to render apparent the absurdity and perilousness of every attempt on the part of the government for the time being, to tie up the hands of succeeding governments in relation to this or any other spot in the field of legislation. Observe how nice, and incapable of being described beforehand by any particular marks, are the lines which mark the limits of right and wrong in this behalf-which separate the useful from the pernicious—the prudent course from the imprudent!-how dependent upon the temper of the times upon the events and circumstances of the day!-with how fatal a certainty persecution and tyranny on the one hand, or revolt and civil war on the other, may follow from the slightest deviation from propriety in the drawing of such lines! and what a curse to any country a legislator may be, who, with the purest intentions, should set about settling the business to all eternity by inflexible and adamantine rules, drawn from the sacred and inviolable and imprescriptible rights of man, and the primeval and everlasting laws of nature!
I give the preference, for the purpose of exemplification, to one of those points of all others, in relation to which it would give me pleasure to see liberty established for ever, as it could be established consistently with security and peace. My persuasion is, that there is not a single point with relation to which it can answer any good purpose to attempt to tie the hands of future legislators; and so, that as there is not a single point, not even of my own choosing, in relation to which I would endeavour to give any such perpetuity to a regulation even of my own framing, it is still less to say — strong as it may appear to say — that were it to depend upon me, I would sooner, were the power of sanctioning in my hands, give my sanction to a body of laws framed by any one else, how bad soever it might appear to me, free from any such perpetuating clause, than a body of laws of my own framing, how well soever I might be satisfied with it, if it must be incumbered with such a clause.
ARTICLE XI.
The free examination of thoughts and opinions is one of the most precious rights of man: every citizen may therefore speak, write, and print freely, provided always that he shall be answerable for the abuse of that liberty in the cases determined by the law.
The logic of this composition is altogether of a piece with its policy. When you meet with a therefore when you meet with a consequence announced as drawn from the proposition immediately preceding it, assure yourself that, whether the propositions themselves, as propositions, are true or false – as ordinances, reasonable or unreasonable, expedient or inexpedient—that the consequent is either in contradiction with the antecedent, or has nothing at all to do with it.
The liberty of communicating opinions is one branch of liberty; and liberty is one of the four natural rights of man, over which human ordinances have no power. There are two ways in which liberty may be violated: by physical or bodily coercion, and by moral coercion or demonstration of punishment; the one applied before the time for exercising the liberty-the other to be applied after it, in the shape of punishment, in the event of its not producing its intended effect in the shape of prohibition.
What is the boon in favour of the branch of liberty here in question, granted by this article? It saves it from succeeding legislators in one shape-it leaves it at their mercy in the other. Will it be said, that what it leaves exposed to punishment is only the abuse of liberty? Be it so. What then? Is there less of liberty in the abuse of liberty than in the use of it? Does a man exercise less liberty when he makes use of the property of another, than when he confines himself to his own? Then are liberty and confinement the same thing-synonymous and interchangeable terms.
What is the abuse of liberty? It is that exercise of liberty, be it what it may, which a man who bestows that name on it does not approve of. Every abuse of this branch of liberty is left exposed to punishment; and it is left to future legislators to determine what shall be regarded as an abuse of it. What is the security worth, which is thus given to the individual as against the encroachments of government? What does the barrier pretended to be set up against government amount to? It is a barrier which government is expressly called upon to set up where it pleases. Let me not be mistaken:—what I blame these constitution-makers for, is, not the having omitted to tie the hands of their successors tight enough, but the suffering themselves to entertain a conceit so mischievous and so foolish as that of tying them up at all; and in particular for supposing, that were they weak enough to suffer themselves to be so shackled, a phrase or two of so loose a texture could be capable of doing the business to any purpose.
The general notion in regard to offences a notion so general as to have become proverbial, and even trivial-is, that prevention is better than punishment. Here prevention is abjured, and punishment embraced in preference. Once more, let me not be mistaken. In the particular case of the liberty of communicating opinions, there most certainly are reasons, for giving up the object of prevention, and the choice of the means of repression, confining the repressive operations of the legislator to the application of punishment, which do not apply to other offences. A word or two to this purpose, and to justify the seeming inconsistency, would have been rather more instructive than most of those other instructions of which the authors of this code have been so liberal.
Not only is the consequent of these two propositions, clogged with the proviso at the tail of it, repugnant to the antecedent, but in itself it is much more extensive — it extends a vast way beyond what is intended as a covering for it. The free communication, of thoughts, and of opinions, I presume are here put as synonymous terms: the free communication of opinions, says the antecedent, is one of the most valuable of the rights of man-of those unalienable rights of man. What says the consequent of it? Not only that a man may communicate opinions without the possibility of being prevented, but that he is to be at liberty to communicate what he will, without the possibility of being prevented, and in any manner, false allegations in matters of fact, and known to be such-for true, false allegations to the prejudice of the reputation of individuals—in a word, slander of all sorts and that in all manner of ways, by speech, by writing, and even in the way of printing, without the possibility of stopping his mouth, destroying his manuscript, or stopping the press.
What then? Does it follow, that because a man ought to be left at liberty to publish opinions of all sorts, subject not to previous prevention, but only to subsequent punishment, that therefore he ought to be left at equal liberty to publish allegations of all sorts, false as well as true allegations known by him to be false, as well as allegations believed by him to be true-attacks which he knows to be false, upon the reputation of individuals, as well as those which he believes to be true? Far is it from my meaning to contend in this place, especially in a parenthesis, much more to take for granted, that the endurance of even these mischiefs, crying as they are, may not be a less evil than the subjecting the press to a previous censure, under any such restrictions on the exercise of that power as could be devised—at any rate, under any such as have ever hitherto been proposed. All I mean to say is, that whether a man ought or ought not to be left at liberty to publish private slander without the application of any thing but subsequent punishment to stop the progress of it, it does not follow that it ought to be left in his power to publish such allegations, because it ought to be left in like manner in his power to publish whatever can come under the denomination of opinions. As for the word thoughts, which is put in a line with the word opinions, as if thoughts were something different from opinions, I shall lay it out of the question altogether, till I can find somebody who will undertake to satisfy me, in the first place, that it was meant to denote something in addition to opinions, and in the next place, that that something was meant to include allegations, true and false, in relation to matters of fact.
Is it, or is it not, a matter to be wished, in France for example, that measures were taken by competent authority—whatever authority be deemed competent, to draw the line between the protection due to the useful liberty, and the restraint proper for the pernicious licence of the press? What a precious task would the legislator find set for him by this declaration of sacred, inviolable, and imprescriptible rights! The protectors of reputation on one side of him: the idolators of liberty on the other: each with the rights of man in his mouth, and the dagger of assassination in his hand, ready to punish the smallest departure from the course marked out in his heated imagination for this unbending line.
ARTICLE XII.
The guarantee of the rights of the man and of the citizen necessitates a public force: this force is therefore instituted for the advantage of all, and not for the particular utility [advantage] of those to whom it is intrusted.
The general purpose of the whole performance taken together, being mischievous and pestilential, this article has thus much to recommend it, that it is nothing to the purpose - no declaration of inviolable rightsno invitation to insurrection. As it stands, it is a mere effusion of imbecility—a specimen of confused conception and false reasoning. With a little alteration, it might be improved into a common-place memento, as stale, and consequently as useless, as it is unexceptionable: to wit, that the employment given to the public force, maintained as it is at the expense of the public, ought to have for its object the general advantage of the whole body of the public taken together, not the exclusive private advantage of particular individuals.
This article is composed of two distinct propositions. In the first, after throwing out of it as so much surplusage, the obscure part about the guarantee or maintenance of the rights of the man and the citizen, there will remain a clear and intelligible part, a decla ration of opinion asserting the necessity of a public force: to this, hooked on in the shape of an inference, of a logical conclusion, a vague assertion of an historical matter of fact, which may have been true in one place, and false in another the truth of which is incapable of being ascertained in any instance-an operation, the labour of which may be spared with the less loss, from its being nothing to the purpose.
This matter of fact is neither more nor less than the main end in view which happened to be present in the minds of the several persons to whose co-operation the public force was respectively indebted for its institution and establishment in the several political communities in the world, and which officiated in the character of a final cause in every such instance. This final cause, the penner of the article-such is his candour and good opinion of mankind—pronounces without hesitation or exception to have been the pure view of the greatest good of the whole communitypublic spirit in its purest form, and in its most extensive application. Neither Clovis, Pepin, nor Hugh Capet, had the smallest preferable regard to the particular advantage of themselves or their favourites, when they laid the foundations of the public force in France, nor any other consideration in view than what might be most conducive to the joint and equal advantage of the Franks, Gauls, and Gallo-Romans upon the whole. As little partiality existed in the breast of William the Conqueror, in favour of himself, or any of his Normans, on the occasion of his sharing out England among those Normans, and dividing it into knight's fees: freemen and villains, barons and yeomen, Normans, Danes, and English, collectively and individually, occupying one equal place in his affections, and engaging one equal portion of his solicitude.
According to this construction, the inference, it must be confessed, may be just enough. All you have to suppose is, that the greatest good of the whole community taken together was in every instance the ruling object of consideration in the breast of the institutors of the public force: the pursuit of that greatest good, in a certain shape not perfectly explained, being the ruling object with these worthy men. As they did institute this public force, it seems to follow pretty accurately that the attainment of that general advantage was the end in view, in each instance, of its being instituted.
Should the two propositions, the antecedent and the consequent, in this their genuine signification, appear too silly to be endurable, the way to defend it may be to acknowledge that the man who penned it knew no difference between a declaration of what he supposed was or is the state of things with regard to this or that subject, and a declaration of what he conceived ought to have been, or ought to be that state of things; and this being the case, it may be supposed that in saying such was the end in view upon the several occasions in question, what he meant was, that such it ought to have been. If this were really his meaning, the propositions are such, both of them, as we may venture to accede to without much danger. A public force is necessary, we may say; and the public is the party for whose advantage that force ought to be employed. The propositions themselves are both of them such, that against neither of them, surely, can any objection he produced: as to the inference by which they are strung together, if the application made of it be not exactly of the clearest nature, you have only to throw it out, and everything is as it should be, and the whole article is rendered unexceptionable.
ARTICLE XIII.
For the maintenance of the public force, and for the expenses of administration, a common contribution is indispensable: it ought to be equally divided among all the citizens in proportion to their faculties.
In the first part of this article two propositions are contained. One is, that a common contribution is indispensable for the maintenanee of the public force. If by this be meant, that raising money upon all, for the maintenance of those whose individual forces are employed in the composition of the public force, is proper, I see no reason to dispute it: if the meaning be, that this is the only possible way of maintaining a public force, it is not true. Under the feudal system, those whose individual forces composed the public force, were maintained, not at the expense of the community at large, but at their own expense.
The other proposition is, that a common contribution is indispensable for the expenses (meaning the other expenses) of administration. Indispensable? Yes, certainly: so far as these other branches of administration cannot be carried on without expense-if they are carried on, the defraying of that expense is indispensable. But are these nameless branches of administration necessary? for if they are not, neither is a common contribution for the defraying of the expense. Are they then necessary?-these unnamed and unindicated branches of administration, which in this mysterious manner are put down on the list of necessary ones, is their title to be there a just one? This is a question to which it is impossible to find an answer: yet, till an answer be found for it, it is impossible to find a sufficient warrant for admitting this proposition to be true. From this proposition, as the matter stands upon the face of it, it should seem that one of these sacred and inviolable and imprescriptible rights of a man consists in the obligation of contributing to an unknown mass of expense employed upon objects not ascertained.
Proposition 3. It (the common contribution in question) ought to be equally divided amongst all the citizens, in proportion to well their faculties.
Partly contradiction-a sequel to, or rather repetition of preceding contradictions: partly tyranny under the mask of justice.
By the first article, human creatures are, and are to be, all of them, on a footing of equality an inquisition which, to be commensurate in respect to all sorts of rights. By the second article, property is of the number of these rights. By the two taken together, all men are and are to be upon an equal footing in respect of property: in other words, all the property in the nation is and is to be divided into equal portions. At the same time, as to the matter of fact, what is certain is, that at the time of passing this article, no such equality existed, nor were any measures so much as taken for bringing it into existence. This being the case, which of the two states of things is it that this article supposes?—the old and really existing inequality, or the new and imaginary equality? In the first case, the concluding or explanatory clause is in contradiction to the principal one: in the other case, it is tauto-logical and superfluous. In the first case, the explanatory clause is in contradiction to the principal one; for, from unequal fortunes if you take equal contributions, the contributions are not proportional. If from a fortune of one hundred pounds you take a contribution of ten pounds, and from a fortune of two hundred pounds, ten pounds and no more, the proportion is not a tenth in both cases, but a tenth in the one, and only a twentieth in the other.
In the second case— that is, if equality in point of property be the state of things supposed-then, indeed, equality of contribution will be consistent with the plan of equalization, as well as consonant to justice and utility; but then the explanatory clause, in proportion to their faculties, will be tautologous and superfluous, and not only tautologous and superfluous, but ambiguous and perplexing for proportionality in point of contribution is not consistent with equality in point of contribution, on more than one out of an infinity of suppositions, viz. that of equality in point of fortune: nor, in point of fact, was the one consistent with the other in the only state of things which was in existence at the time.
Men's faculties too! What does that word mean? This, if the state of things represented as actually existing, as well as always having existed, and for ever about to exist, had been anything more than a sick man's dream, would have required to be determined, had it been at all a matter of concern to prevent men from cutting one another's throats, and must have been determined before this theory could have been reduced to practice.
In the valuation of men's faculties, is it meant that their possessions only, or that their respective wants and exigencies, as well as their ways and means, should be taken into account? In the latter case, what endless labour! in the former case what injustice!
In either case, what tyranny! An inquisition into every man's exigencies and means, — an inquisition which, to be commensurate to its object, must be perpetual,— an inquisition into every man's circumstances, one of the foundation stones in this plan of liberty!
To a reader who should put an English construction upon this plan of taxation — (masked by the delusive term contribution, as if voluntary contributions could be a practicable substitute for compulsory,) — to a reader who should collect from the state of things in England the construction to be put upon this plan of taxation, the system here in view would not show itself in half its blackness. To an English reader it might naturally enough appear, that all that was meant was, that the weight of taxation should bear in a loose sense as equally, or rather as equitably — that is, as proportionably, as it could conveniently be made to do;— that taxes, a word which would lead him directly and almost exclusively to taxes upon consumption, should be imposed — for example, upon superfluities in preference to the necessaries of life. Wide indeed would be his mistake. What he little would suspect is, that taxes on consumption, the only taxes from which arise the contributions that in plain truth, and not in a sophistical sense, are voluntary on the part of the contributor, are carefully weeded out of the book of French finance. Deluded by the term indirect, imposed as a sort of term of proscriptiom upon them by a set of muddy-headed metaphysicians — little does he think that the favourite species of taxation in that country of perfect liberty, is a species of imposition and inquisition, which converts every man who has any property into a criminal in the first instance, which sends the tax-gatherer into every nook and corner of a man's house, which examines every man upon interrogatories, and of which a double or treble tithe would be an improved and mollified modification.
ARTICLE XIV All the citizens have the right to ascertain by themselves, or by their representatives, the necessity of the public contribution — to give their free consent to it — to follow up the application of it, and to determine the quantity of it, the objects on which it shall be levied, the mode of levying it and getting it in, and the duration of it.
Supposing the author of this article an enemy to the state, and his object to disturb the course of public business, and set the individual members of the state together by ears, nothing could have been more artfully or more happily adapted to the purpose. Supposing him a friend, and his object to administer either useful instruction or controul, nothing more silly or childish be imagined.
In the first place, who is spoken of — are meant, by all the citizens? Does it mean all, collectively acting in a body, or every citizen, every individual, that is, any one that pleases? This right of mine,— is it a right which I may exercise by myself at any whenever it happens to suit me, and the concurrence of anybody else, or which can only exercise if and when I can get every body else, or at least the major part of every else, to join me in the exercise of it? The difference in a practical view is enormous; but the penners of this declaration, by whom terms expressive of aggregation, and terms expressive of separation, are to all appearance promiscuously, show symptoms of their being aware of the smallest difference. If in conjunction with every body else, I have it already by the sixth article. Laws imposing contributions are laws: I have already, then, a right of concurring the formation of all laws whatever: what I get by acquiring the right of concurring the formation of the particular class of which are employed in imposing contributions? As a specification, as an of the general provision to the subject, it might be very well. But it is not given as a specification, but as a distinct article. What marks the distinction the forcibly, is the jumbling in this instance, and in this instance only, acts of another with acts of legislation — the right of into the necessity of the operation, and of following up such examination with right of performing the operation — the of observing and commenting on the manner in which the powers of government are exercised, with the right of exercising them.
Make what you will of it, what a pretty contrivance for settling matters, and an end to doubts and disagreements! This, whatever it is, is one of the things which am told I have a right to do, that is, either by myself, or by certain persons alluded to under the denomination of my representatives, — either in one way or the other; but in which? This is exactly what I want to know, and this is exactly what I am not told. — Can I do it by myself, or only by my representatives; that is to say, in the latter by a deputy in whose election I have had a vote, perhaps not — perhaps given the vote, perhaps not — perhaps voted for, perhaps voted against; and who, whether I for or against him, will not do either this, or any one other act whatsoever, at my desire? Have I, an individual — have I in my individual capacity — a right when I please, to ascertain, that is, to examine into the necessity of every contribution established or proposed to be established? Then have I a right to go whenever I please, to any of the officers in the department of the revenue,— to take all the people I find under my command,— to put all the business of the office to a stand,— to make them answer all my questions,— to make them furnish me with as many papers or other documents as I desire to have? — You, my next neighbour, who are as much a citizen as I am, have as much of this right as I have. It is your pleasure to take this office under your command, to the same purpose at the same time. It is my pleasure the people should do what I bid them, and not what you bid them; it is your pleasure they should do what you bid them, and not what I bid them:- which of us is to have his pleasure? The answer is,— he who has the strongest lungs, or if that will not do, he who has the strongest hand. To give everything to the strongest hand is the natural result of all the tutoring, and all the checking and controuling of which this lecture on the principles of government is so liberal; but this is the exact result of that state of things which would have place, supposing there were no government at all, nor any such attempt as this to destroy it, under the notion of directing it.
The right of giving consent to a tax, the right of giving consent to a measure, is a curious mode of expression for signifying assent or dissent as a man thinks proper! It is surprising that a man professing and pretending to fix words-to fix ideas — to fix laws-to fix everything-and to fix them to all eternity, should fix upon such an expression, and should say the right of giving consent, instead of the right of giving a votethe right of giving consent, and consent only, instead of the right of giving consent or dissent, or neither, as a man thinks proper.
ARTICLE XV.
Society has a right to demand from every agent of the public, an account of his administration.
Society? What is the meaning-what is the object here? Different, where it ought to be identical-identical, where it ought to be different-ever inexplicit-ever indeterminate, using as interconvertible, expressions which, for the purpose of precision and right understanding, require the most carefully to be set and kept in opposition: such is the language from the beginning of this composition to the end!